MZZET v Minister for Immigration and Border Protection
[2014] FCA 824
•4 August 2014
FEDERAL COURT OF AUSTRALIA
MZZET v Minister for Immigration and Border Protection [2014] FCA 824
Citation: MZZET v Minister for Immigration and Border Protection [2014] FCA 824 Appeal from: MZZET v Minister for Immigration and Border Protection [2014] FCCA 214 Parties: MZZET v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 240 of 2014 Judge: MIDDLETON J Date of judgment: 4 August 2014 Legislation: Migration Act 1958 (Cth) Date of hearing: 4 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 24 Counsel for the Appellant: In person Counsel for the Respondent: Mr N Wood Solicitor for the Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 240 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZET
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE OF ORDER:
4 AUGUST 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 240 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZET
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON J
DATE:
4 AUGUST 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
An appeal is brought from a judgment and orders of the Federal Circuit Court (‘the Circuit Court’), given on 9 April 2014, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) made on 30 November 2012 (‘the Decision’). The Tribunal affirmed an earlier decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa.
BACKGROUND
The appellant and his claims
The appellant is an Indian national. On 12 June 2008, he came to Australia as the holder of a Class TU subclass 573 (Student Dependant) visa. On 16 January 2012, he divorced. On 24 January 2012, the Department notified him of its intention to cancel his student dependant visa on the basis that he was no longer married. On 31 January 2012, he applied for a protection visa.
In support of his application for a protection visa, the appellant claimed to have been harmed by members of a political party, Akali Dal (led by a person called Mohan Lal), on account of his political beliefs or activities. In particular, the appellant claimed as follows:
(i)He was involved with the Congress Party, including by campaigning for a Congress Party candidate in the February 2007 election.
(ii)On 4 July 2007, he was attacked by three members of Akali Dal.
(iii)Following the attack, he was hospitalised for “several days”.
(iv)He filed a complaint to the police about the attack, despite threats by Mohan Lal’s “goons” not to do so.
(v)After filing the police complaint, “they” tried to kill him and “threatened [him] to withdraw the case”.
(vi)In July 2008, he returned to India to attend the court hearing of a charge arising from his police complaint. While in India to attend the court hearing, he hid in a relative’s house in order to avoid further harm from Akali Dal.
(vii)He returned to India on other occasions and “stayed different places to escape detection”. In particular, he returned to India on 12 October 2011 with the intention of staying permanently, but Mohan Lal learned of his return and “ordered his goons to kill [him]”.
(viii)Mohan Lal wants to frame him for the murder of Lal’s own brother (who Lal himself killed), and has bribed police to “harass [him] continuously”. “They” have been looking for him at his relatives’ houses.
(ix)The police are “stooges” of the Akali Dal.
The appellant also provided a number of documents in support of his protection visa application.
The Tribunal’s Decision
The Tribunal accepted that the appellant was a credible witness. The Tribunal was prepared to accept that he was engaged in activities in support of the Congress party and was targeted by members of the Akali Dal because of his support of the Congress Party (see [131] of the Tribunal’s reasons).
However, the Tribunal noted that there was considerable evidence that state authorities have intervened to provide protection to associates of the Congress party. With respect to the appellant’s assertion that the authorities are corrupt, the Tribunal held that that assertion was inconsistent with the appellant’s own actions whereby he sought the assistance of law and enforcement authorities and the courts with respect to the alleged attack in 2007. Having regard to country information, the Tribunal held that, although imperfect, the state authorities in India could provide an adequate level of protection to the appellant against the harm which he claims he fears (see [135]-[137]) of the Tribunal’s reasons).
The Tribunal at [49] of its reasons referred to independent country information which is also relied upon, in addition to other such information later referred to under the heading “Country Information” from [55].
The Tribunal gave substantial weight to the appellant’s own evidence and considered it to be inconsistent with the existence of a well-founded fear of persecution in India. For example, the appellant had said that he did not wish to live in Australia permanently, but only wanted “a little more time” in Australia before returning to India. Furthermore, he also said that felt “good” in India on his multiple return trips, and that he had on one occasion he had decided to live there (see [43]-[44], [138] of the Tribunal’s reasons).
The Tribunal was not satisfied that the appellant had a well-founded fear of persecution in India, or that there were substantial grounds for believing there to be a real risk that the appellant would suffer significant harm in India within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’) (see [139]-[140] of the Tribunal’s reasons).
FEDERAL CIRCUIT COURT
The application for judicial review in the Federal Circuit Court advanced the following grounds:
1.The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in India. The Tribunal used this information (RRT decision record pages 9 to 18). This was against section 424A of the Migration Act 1958.
2.The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
3.The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Akali Dal members.
4.The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claim were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
NOTICE OF APPEAL
The notice of appeal in this Court advances two grounds:
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
CONSIDERATION
The appellant has failed to specify in his notice of appeal in this Court any particular error by the Circuit Court in considering his application for judicial review, or any particular jurisdictional error by the Tribunal in considering his application for merits review.
Nonetheless, as the Minister contends, two complaints can be discerned:
(i)the Tribunal breached s 424A of the Act by failing to give to the appellant, before the Tribunal hearing, “independent information that it had about politics in India” (the s 424A complaint); and
(ii)the Tribunal erred by “reaching adverse conclusions that certain aspects of his claim were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters” (the general procedural fairness complaint).
Outside these complaints the appellant either seeks merits review of the Decision or the complaint is so vague and general as to be essentially meaningless.
I turn then to the two complaints referred to above.
Section 424A complaint
Section 424A relevantly provides that, subject to subss (2A) and (3), the Tribunal must, in writing, give to a visa applicant clear particulars of any “information” that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
Section 424A(2A) provides that the Tribunal is not obliged to comply with s 424A if the Tribunal gives clear particulars of the information to the visa applicant, and invites the applicant to comment on or respond to the information, under s 424AA. Section 424AA authorises the Tribunal to orally give the applicant clear particulars of the relevant information at a hearing, so long as the Tribunal complies with the requirements in s 424AA(b).
Section 424A(3) provides that s 424A does not apply to certain information, including information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member”.
It is unclear what information the appellant says the Tribunal ought to have, but did not, give to him before the hearing. The application refers simply to “independent information … about politics in India”. Country information is summarised by the Tribunal at [49] and [55] to [119], and referred to by the Tribunal at [132] and [170], and, meets this description. None of that information is information “specifically about the [appellant]”. None of that information is information “specifically about … another person”. While the information refers to various Indian political figures, it does so only tangentially in the course of summarising aspects of party politics, and contours of political conflict, in India. Accordingly, the independent country information falls within the exception to s 424A set out in s 424A(3)(a), and the Tribunal was not required to put it.
The trial judge was correct to dismiss the appellant’s application on this ground.
General procedural fairness complaint
Any assessment of the appellant’s claim that the Tribunal denied him procedural fairness must be considered in the context of s 422B of the Act, which states that Div 4 of Pt 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The Tribunal has not failed to comply with the requirements of procedural fairness set out in the Act. It did not breach s 424A, for the reasons outlined above. It invited the appellant to attend a hearing under s 425, which the appellant accepted. It adequately alerted the appellant to the nature of the issues arising in relation to the decision under review (including the critical issue of the existence of effective state protection). It considered the appellant’s claims to invoke Australia’s protection obligations, including claims not clearly articulated by the appellant, including the possibility of the appellant’s membership of, or association with, the Congress Party being characterised as membership of a “particular social group”.
The trial judge was correct to dismiss the appellant’s application on this ground.
CONCLUSION
In light of the foregoing reasons, the appeal is dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 5 August 2014
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